Provisional Remedy of Inventory of Assets - Flexibilization of Cancellation by
the Federal Revenue Office
A little more than six months ago, Brazil's Federal Revenue (RFB) published Normative Instruction (IN/RFB) no. 1565/2015 aiming to improve the procedures for constitution and cancellation of the provisional remedy of inventory of assets and rights intended to monitor tax debtors' equity (such equity may be nominated as collateral for federal debts and may be the basis for complaints in tax provisional remedy procedures).
Compared to the previous rule, the prerequisites provided for in the new IN/RFB for constitution of the inventory of assets were not changed. Since the Laws regulating the matter (Laws nos. 8397/2002 and 9532/1997), which are the legal basis for this type of procedure, have not changed, IN/RFB no. 1565/2015 maintained the factual prerequisite for constitution of the inventory. In other words, the inventory of assets and rights will reach taxpayers and persons responsible for the payment of taxes that have debts with the Federal Revenue in amounts simultaneously exceeding 30% of their known equity and two million BRL (R$ 2,000,000.00).
However, it is possible to say that IN/RFB no. 1565/2015 established a certain flexibilization of the rule in regard to the possibilities of cancellation of the inventory of assets. This is so because article 9 of IN/RFB no. 1565/2015, expressly provided for the possibility of the own taxpayer that is alienating, transferring or encumbering inventoried assets or rights requesting the cancellation of the inventory directly to the respective property registries, what was not possible before.
To that end, the sole requirement established in IN/RFB no. 1565/2015 is the filing of a formal request along with a proof of communication to the Federal Revenue on the alienation, transfer or encumbrance; by the way, said procedure was also simplified by article 8 of said rule.
Although, in theory, the inventory of assets should not prevent the alienation, transfer or encumbrance of those assets and rights, in practice, the assets and rights inventoried by the Tax Administration are difficult to be negotiated by taxpayers due to several operational consequences caused by the inventory, especially in regard to the time required for the tax authorities to issue an order for the property registries to cancel the inventory. Until now, that control was exerted by the own Tax Administration.
Despite the relative improvement brought by the new rule intended to streamline the procedure for cancellation of the inventory of assets and rights, it is still not possible to consider that the matter was solved in the tax sphere. Even after the issuance of IN/RFB 1565/2015, quite often we witness the own Federal Revenue's noncompliance with its own terms and provisions. In such cases, that is, in cases where the own Federal Revenue or property registries unreasonably refuse to abide by IN/RFB 1565/2015 for cancellation of the inventory, it is necessary to take applicable administrative or judicial measures to obtain the cancellation of the inventory and, consequently, to allow their alienation and transfer to third parties and prevent further losses to taxpayers.
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